House Oversight report: Lois Lerner misled Congress on IRS scandal

After playing some weird little games about giving the House Oversight committee honest testimony, former – technically, “retired” – IRS official Lois Lerner decided to invoke the Fifth Amendment again last week. The committee has released an extensive report, based heavily on emails that took a bit of effort to pry out of the Administration, that gives us some hints about what Lerner might regard as self-incriminating testimony. The most obviously dicey revelation from the emails is that she was less than truthful in previous testimony concerning at least one important part of her organization’s targeting of conservative groups.

The relevant section of the House report is entitled “Lerner’s False Statements to the Committee.”

During the February 24, 2012, briefing, Committee staff asked Lerner whether the criteria for evaluating tax-exempt applications had changed at any point. Lerner responded that the criteria had not changed. In fact, they had. According to the Treasury Inspector General for Tax Administration (TIGTA), in late June 2011, Lerner directed that the criteria used to identify applications be changed. This was the first time Lerner made a false or misleading statement during the Committee’s investigation.

On March 1, 2012, the Committee requested that TIGTA begin investigating the IRS process for evaluating tax-exempt applications. Committee staff and TIGTA met on March 8, 2012 to discuss the scope of TIGTA’s investigation. TIGTA’s investigation commenced immediately and proceeded concurrently with the Committee’s investigation.

During another briefing on April 4, 2012, Lerner told Committee staff that the information the IRS was requesting in follow-up letters to conservative-leaning groups—which, in some cases, included a complete list of donors and their respective contributions—was not out of the ordinary. Moreover, on April 26, 2012, in Lerner’s first written response to the Committee’s request for information, Lerner wrote that the follow-up letters to conservative applicants were “in the ordinary course of the application process to obtain the information as the IRS deems it necessary to make a determination whether the organization meets the legal requirements for tax-exempt status.”

In fact, the scope of the information that EO requested from conservative groups was extraordinary. At a briefing on May 13, 2013, IRS officials, including Nikole Flax, the IRS Commissioner’s Chief of Staff, could not identify any other instance in the agency’s history in which the IRS asked groups for a complete list of donors with corresponding amounts. These marked the second and third times Lerner made a false or misleading statement during the Committee’s investigation.

On May 4, 2012, in her second written response to the Committee, Lerner justified the extraordinary requests for additional information from conservative applicants for tax-exempt status.25 Among other things, Lerner stated, “the requests for information . . . are not beyond thescope of Form 1024 [the application for recognition under section 501(c)(4)].”

According to TIGTA, however, at some point in May 2012, the IRS identified seven types of information, including requests for donor information, which it had inappropriately requested from conservative groups. In fact, according to the TIGTA report, Lerner had received a list of these unprecedented questions on April 25, 2012—more than one week before she sent a response letter to the Committee defending the additional scrutiny applied by EO to certain applicants. Lerner’s statement about the information requests was the fourth time she made a false or misleading statement during the Committee’s investigation.

(Emphases in the original.) It’s remarkable to look back from all we know now, and realize just how completely false these statements of Lerner’s were. She wasn’t just tripping over a few words, or remembering some fine detail incorrectly. The false statements she made were huge, and deliberate. No one familiar with her agency’s insane series of information requests – prayer books from a pro-life organization, for example – could possibly think they were made “in the ordinary course of the application process.”

And, as the House Oversight report reminds us, the IRS scandal began with a question Lerner “planted with an audience member” at a tax conference, leading to the now utterly defunct story about low-level rogue employees in the Cincinnati office… accused by Lerner of “wrong, absolutely incorrect, insensitive, and inappropriate” targeting of Tea Party groups, based on little more than their names. It doesn’t seem as if there’s much love lost between the Cincinnati office and Lerner. The official in charge of that office angrily accused Lerner of not merely “throwing them under the bus,” but hitting them with “a convoy of Mack trucks,” and making derogatory statements about them as a “backwater” office.

That first misleading statement about changes to the criteria for enhanced review of certain groups is important, because according to House Oversight, the change was made after “Lerner became uncomfortable with the burgeoning number of conservative organizations facing immensely heightened scrutiny from a purportedly apolitical agency.” The report describes this as “sleight of hand” that would give the Tax Exempt Organizations unit a “level of deniability” against future accusations of political bias – which is, of course, exactly what happened.

It will come as no surprise to observers of the Obama Administration’s tactics that House Oversight discovered Lerner “has improperly used a non-official email account to conduct official business. On several occasions, Lerner sent documents related to her official duties from her official IRS email account to an msn.com email account labeled ‘Lois Home.’”

That shows a disappointing lack of creativity compared to the likes of EPA Administrator Lisa Jackson, who created a phony (and male) alternate identity for her inappropriate use of unofficial email. It is, nonetheless, a substantial offense against federal records requirements, creating difficulty for the IRS when “responding to Freedom of Information Act, congressional subpoenas, or litigation requests.” That sounds more like a feature than a bug.

While the Oversight report makes due allowances for “bureaucratic bumbling,” investigators find it interesting that so much of the bumbling ran in one partisan direction. It is alleged that Lerner was “keenly aware of acute political pressure to crack down on conservative-leaning organizations.” It doesn’t sound as though a whole lot of pressure was necessary to get Lerner moving in the right direction:

Even without her full testimony, and despite the fact that the IRS has still not turned over many of her e-mails, a political agenda to crack down on tax-exempt organizations comes into focus. Lerner believed the political participation of tax-exempt organizations harmed Democratic candidates, she believed something needed to be done, and she directed action from her unit at the IRS. Compounding the egregiousness of the inappropriate actions, Lerner’s own e-mails showed recognition that she would need to be “cautious” so it would not be a “per se political project.” She was involved in an “off-plan” effort to write new regulations in a manner that intentionally sought to undermine an existing framework for transparency.

Most damning of all, even when she found that the actions of subordinates had not adhered to a standard that could be defended as not “per se political,” instead of immediately reporting this conduct to victims and appropriate authorities, Lerner engaged in efforts to cover it up. She falsely denied to Congress that criteria for scrutiny had changed and that disparate treatment had occurred. The actions she took to broaden scrutiny to non-conservative applicants were consistent with efforts to create plausible deniability for what had happened – a defense that the Administration and its most hardcore supporters have repeated once unified outrage eroded over one of the most divisive controversies in American politics today.

(Emphasis mine.) This is the so-called “Thomas Becket” aspect of the IRS scandal, named after the way King Henry didn’t have to give direct orders for Becket’s assassination. He only had to mutter, “Will no one rid me of this turbulent priest?” and a few knights promptly swung their broadswords until the turbulence subsided. There doesn’t have to be a smoking-gun memo with detailed marching orders for Lerner; she was just the right person in the right place at the right time, listening to the party she supported fulminate about the fundraising activities of people she didn’t like. The details in the House report make it difficult to deny that she knew her actions were improper, and proceeded with deliberate intent.

The conclusion of the House Oversight report wistfully invites Lois Lerner to rethink her options and testify to clear up many remaining questions, “including the identities of others at the IRS and elsewhere who may hae known about key events and decisions she undertook.” Not much chance of that, unless the House Oversight committee can credibly threaten Lerner with contempt of Congress charges, and she’s not convinced the Obama Justice Department will simply defuse them. Whatever was going on when Lerner and her legal representatives played their little game about testifying last week, it’s over now, and she seems determined to tough out the remaining days of the scandal as the “fall gal” who never actually has to take a fall. It’s hard to argue with the effectiveness of her tactics… either during the 2012 election, or today.